This was a claim for disability discrimination, by someone whom the citizens advice bureau (CAB) rejected as a trainee voluntary adviser. Only travel expenses would be paid, but a document would set out a series of commitments on both sides. The EAT overturned a tribunal decision that the claimant would not be an employee/worker, and so was not within the DDA 1995. The EAT sent the matter back to be reconsidered. If the claimant did not fall within the DDA on that basis, the tribunal would also need to consider whether he fell within it on the basis of this being an arrangement for the purpose of determining to whom to offer employment.
2000, Employment Appeal Tribunal (EAT). Full decision: bailii.org/uk/cases/UKEAT/2000/1096_99_0607.html
Facts
The claimant was not accepted as a trainee voluntary adviser with the citizens advice bureau (CAB), allegedly for reasons relating to his history of mental illness. It was an unpaid role, but travel expenses would be reimbursed.
The document which the claimant would have signed, had he been accepted, included various commitments, including his commitment to volunteer two particular days a week, at certain specific times, with a particular start date and for a specific length of time (24 months if he only worked two days a week), and to give reasonable notice of his intention to leave.
The document said “you will receive…”, and then set out what training and support he would get. There was a grievance procedure and disciplinary procedure. An expenses section provided that he would receive expenses for transport to and from work, whether reimbursement of fares, or a mileage allowance if he used a car in the course of his work. There were then a number of items under “what we expect from you”.
He claimed under the Disability Discrimination Act (DDA) 1995. He argued that he was applying for “employment”, defined in the DDA as “a contract of service … or a contract personally to do any work” (s.68(1) DDA).
Held: The tribunal’s decision that he was not covered by the DDA should be overturned and sent back to be reconsidered.
Employment Tribunal (ET)
The ET held that the claimant was not applying for “employment” as defined in the DDA. There would be no contractual obligation created under the document. Therefore he had no DDA claim.
The ET said there was was no obligation on either party. The CAB could terminate the relationship at any time. Nor was there any obligation on the “trainee” volunteer adviser to attend if he chose not to. There were no sanctions against him except the termination of the training programme. Likewise he was under no obligation to commit himself to “advising” work for any period or at all after completing the training period.
The ET said the crucial factor was the absence of pay. Reimbursement of travel expenses between home and workplace, or when travelling on CAB work, could not equate to pay or remuneration or remunerated employment.
Employment Appeal Tribunal (EAT)
Whether an “employee” within DDA
The EAT overturned the ET decision:
- The document set out for each party a series of separate obligations and commitments. No tribunal properly directed could conclude that there was no obligation on either party.
- The ET had also committed an error of law by apparently regarding the absence of pay as the crucial factor, rather than one of a number of factors to be weighed in the balance.
- If the claimant or anyone were not reimbursed travelling expenses under such an agreement, an argument that they did not have recourse to law, on the basis that the sums not were due under a contract or damages for breach of contract, would be unsustainable.
An ET should reconsider the case. The ET had failed to address the question of whether the contract was an employment contract [ie “contract of service”] or a contract personally to do any work (in which case the DDA applied), or rather “no more than simply a training contract under which [the claimant] is not contracted personally to do any work but simply contracting to undergo training in the manner prescribed”. The EAT continued:
15. In order for any Tribunal sensibly to come to a conclusion on that issue it would have to receive evidence on what actually happens under such an agreement in terms of the mix between formal training, supervision whilst at work, and work performed during the training period, no doubt taking into account all those matters and any other relevant matters and coming to a conclusion as to whether, on balance, the contract can be described as a contract personally to do work.
[More on this issue generally: Volunteers and interns<Legal contract to do work.]
Arrangement for the purpose of determining to whom to offer employment?
The claimant argued that even if he failed on that point, he was within the DDA as this was an arrangement for the purpose of determining to whom the CAB should offer employment, within s.4(1)(a) DDA.
The EAT accepted that a volunteer training programme such as this was capable of being such an arrangement. The ET was wrong to say that the arrangements had to be in relation to a specific job vacancy or vacancies.
The way the claimant’s barrister put it was that the satisfactory completion of such a training programme was a first step or method by which a pool of people was fixed on, within which such employment as was available might be offered. It was a first stage in a potentially seamless process, at the end of which was an offer of employment as a volunteer advisor. The EAT commented:
20. … Whether or not the provision of such a training programme does in fact fall within Section 4(1)(a) will depend on a number of matters which the Employment Tribunal will have to determine. Those matters may include: first whether a volunteer adviser is someone who is engaged in employment within the meaning of Section 68 of the [DDA]; second, whether, in fact and in practice, the progression from completion of the volunteer training programme to the offer of a position as a volunteer adviser is such as to demonstrate that the provision of the training programme is part of an integrated selection process or whether it is an entirely discrete and separate process at the end of which there is a fresh consideration whether to offer such employment. …”
[There is now similar but not identical wording in s.39(1)(a) EqA, on which see Volunteers and interns>Volunteering as way to assess suitability for employment.]
